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Wednesday, 24 June 1903


Mr Isaacs - Then would the honorable and learned member prefer to have only one Judge ?


Mr GLYNN - No. This is not a question to be pushed to absurd limits. I might as well ask my honorable and learned friend if he thinks that a court of twenty would be better than a court of five. As the original jurisdiction of the court is very small-


Mr McCay - And its exclusive jurisdiction still smaller.


Mr GLYNN - Yes ; its exclusive jurisdiction is confined to suits against the Commonwealth by a State, suits by a State against the Commonwealth, and suits by one State against another. .Such actions are likely to be very rare. I cannot recall a single case in which one of the States has brought a suit against another State, and the matter has come to a final judgment. Such cases are likely to arise, if they arise at all, only on a question like the river question. Therefore, we may describe the court as practically an appeal court, whose J Judges we shall not have to send on circuit. It was argued for the Government proposal that five Judges would be required, so that there might be some to send on circuit, in order to bring justice within the reach of all who desired to avail themselves of the original jurisdiction of the court. But as that original jurisdiction now amounts to practically nothing, we can keep our Judges at home. The matter was discussed in the Convention, and, after careful deliberation, the conclusion was come to, at all events by the members of the Judiciary Committee, and I think by its chairman, that at the outset the Commonwealth could get on very well with three Judges. But if the appeal work is very small - and it has been estimated that there will not be more than twelve or fifteen cases on tlie average each year for the next twenty years - there will be nothing to prevent the court, at all events until the seat of government is chosen, from travelling from one State to another to hear cases.


Mr Higgins - Then they are to spend their time travelling rather than working 1


Mr GLYNN - The great expense connected with litigation is the expense to which the suitors are put in obtaining wit- nesses, and if we send the Judges to the suitors, we shall save a considerable expenditure. If honorable members were willing that the members of the court should act as Circuit Judges, why should they object to the whole court travelling from place to place, as cases arise, in one capital or another? In the Convention, the legal members who discussed the matter thought that three Judges would be sufficient, though I believe that the original draft Bill provided for four.


Mr Deakin - For five, I think. Five were provided for in the 1891 Constitution.


Mr GLYNN - That makes my position still stronger. Upon the reconsideration of the matter, the members of the Convention thought that it would be absurd to commence with five Judges.


Mr Isaacs - The Convention decided by a majority of only one in favour of three Judges instead of five.


Mr GLYNN - That may be so; but a far more important matter, namely, the retention of the provision for appeal to the Privy Council, was decided also by a majority of one.' Therefore, if we apply that test, we shall find that it will tell against almost every vital question that was settled at the Convention. The question of the number of Judges was considered on two occasions. At the Adelaide Convention it was first suggested that there should be five Judges, then I think it was suggested that t?ie number be reduced to four, and ultimately it was settled that there should be only three. Therefore, I ask the Committee to appoint only three Judges. If that number prove too small, we can easily increase it ; whereas if we start with five Judges we cannot afterwards cut down the number. "We ought to begin with a tribunal which will provide as good a court of appeal as is to be' found in most of the States. Although it may occasionly happen that five Judges sit on the Bench in Victoria. and that they may sometimes have as many as six or seven upon the Bench in New South Wales, the appellate courts in the States are generally constituted of 'three Judges only. If that number is sufficient for the purposes of the

States I do not see why it should not be considered sufficient for ours.


Mr DEAKIN - I do not desire to detain the Committee by the recital of ancient history, but the honorable and learned member for South Australia, Mr. Glynn, has more than once alluded to the decisions of the Convention, and it is perhaps well to remind him that when the Convention consented to fix the minimum of three Judges they also fixed three as the minimum number of States which might constitute the Commonwealth. It was fully realized at 'that time that we might have a Commonwealth consisting of only three States, and yet a minimum of three Judges was considered no more than sufficient for even that small number of States. I think that this statement effectively meets the argument that the Convention considered three Judges would be sufficient to form a High Court for the Commonwealth as now constituted. Furthermore, at that time it was considered practically hopeless to expect Queensland to join the Federation. All the estimates. of transferred expenditure upon which we have been content to submit to criticism were prepared on that assumption, and therefore left out of account the expenditure which would be involved by the accession of that State.


Mr McCay - I think that the AttorneyGeneral is wrong.


Mr DEAKIN - The honorable and learned member mav think so, but I have satisfied myself as to transferred expenditure by a reference to the chairman of the Finance Committee of the Convention. Little importance can be attached to the decision of the Convention with reference to the minimum of three Judges. Upon the last occasion I voted in favour of the minimum of three Judges, to allow elasticity to this Parliament in dealing with such appointments. I have no doubt that other members of the Convention were actuated by similar considerations. Leaving the Convention proceedings, we are called upon to look in the face of the Constitution to-day. The arguments which have been used by my honorable friends upon the Government corner benches, with regard to the necessity for the strictest economy, would weigh with me as much as with any one in matters in which we were acting within our own choice and discretion. I do not wish to belabour the point, except to assert once more that in my opinion, and in that of many other honorable members, and especially of those who were members of the Convention, the obligation under the Constitution to create a High Court is imperative, and applies absolutely at present. The creation of the court is not to be postponed, and ought never to have been postponed, any longer than the circumstances of parliamentary work absolutely require.


Mr A McLEAN (GIPPSLAND, VICTORIA) - Whether the court is necessary or not 1


Mr DEAKIN - Yes ; whether in the opinion of this Parliament it is required or not. The Convention attached so much importance to this court - placed so much reliance upon its decisions in matters affecting Inter-State relations, and trusted so much to it for the protection of the interests of tlie smaller States - that I do not believe that the Constitution would have been accepted unless the provision for the creation of the High Court had been mandatory. Finding that the Constitution required the court to be created, I set myself to consider the smallest number of Judges that would be necessary to enable the court to discharge the duties imposed upon it by the Constitution. It appeared to me, for reasons al ready given, that a court of five Judges would be required, in order to bring it into touch with the States by personal visitation, and to enable it to deal with the important subjects which would be brought before it. I confess freely that since this court had to be organized under the mandate of the Constitution, I had to consider, as far as I could, the amount of appellate and other business which we could reasonably expect to be submitted to it in its earliest years. I did not see that there was enough of the particular business to transact which the court had to be appointed to justify me in supposing that it would at once provide five Judges with a steady sufficiency of work. Consequently, I looked at the Constitution to see the extent to which we could attach work to the High Court by relieving the States Courts, and thus paving the way for economies in the States so as to make up for a large proportion of the expense incurred iu connexion with the new tribunal. I looked forward to what I considered would be the inevitable trend of legal development in the States, and endeavoured to anticipate it by providing at the outset for the transfer to the High

Court of the work which it would be proper for it to do, which ought to come to it eventually, and of which we could very well relieve the States Courts. I have put this position to honorable members with such force as I could command, but nevertheless have not been able to convince them of the necessity for giving the High Court that work with which it would be proper to intrust it, but which is not required by the Constitution to be given to that tribunal. I wished to see the court continually occupied, but only with such business as might be appropriate to its character, and which might be taken to it with advantage to litigants. These then are the principles upon which this measure was constructed. I have hesitated to interpose when' honorable members have been criticising me for having given to the High Court jurisdiction which was not necessary in the first instance, but which was desirable in order to fully utilize its Bench. As we were obliged to create the court, and as in order to constitute it an effective tribunal it was essential to appoint five J Judges, the next; and the only really economical course was to provide that the Judges of the High Court should perform work which they could transact with more advantage than could the States Courts.


Mr Higgins - Why to more advantage ?


Mr DEAKIN - Because the nature of the work in some cases is such that a Bench of five Judges, presumably the strongest in Australia, could perform it with more' advantage to litigants than the States Courts, which are rarely constituted of more than three Judges.


Mr Higgins - Was not that all conjecture ?


Mr DEAKIN - It had to be conjecture, but I gave my reasons, which I am sorry to say have not convinced the Committee. Having failed in this, it now becomes my duty to call attention to the changes which have been made in the Bill, and the extent to which they will affect the business to be transacted by the High Court. Upon this latter point the widest difference of opinion exists, even among those honorable and learned members who are engaged from day to day in the practice of their profession. This divergence of view exists because every professional man must necessarily speak simply from his own knowledge gained in his own State, and assess the business that will go before the High Court from that standpoint. Very few of us are acquainted even in a superficial way with the conditions of law business beyond our own States, and consequently our opinions must be largely speculative. The business in our local courts varies immensely, particularly the amount of litigious business. As honorable members know, there may be a large amount of business passing through the solicitors' offices, while only a comparatively small portion of it may fmd its way into the courts, or there may be a relatively small amount of business in the solicitors' offices, and yet the courts may be fully occupied. It would be beyond the capacity of any honorable member, or any group of honorable members, to arrive at anything like a precise estimate of the future business to be transacted by this new court. This will depend upon circumstances altogether beyond our control, and practically beyond our knowledge. There are seasons in which a litigious influence appears to be felt, and any estimates of this kind must be personal guesswork. Consequently, although I believe that if the Bill had been passed in its original form there would have been ample business to occupy the time of the Bench of five Judges proposed, I confess that in view of the inroads which have been made upon the Bill by the removal of the provisions relating to optional original jurisdiction, and of all those appeals that would have been taken from a single Judge of a State Court direct to the High Court, instead of passing through the Pull Court of a State, the problem as to the amount of business to be transacted is more difficult to solve than before. It may be that with even the limited jurisdiction now provided, the court. may find ample work, but on the other hand it may not, and I would not venture to dogmatize upon that question. The whole matter has become so complicated that I cannot forecast what the business will be. Having made that admission I still contend, for the same reasons that have been urged by the honorable and learned member for Northern Melbourne, that, in order to transact the business which will be brought before the court, it is necessary that it should be constituted as proposed in the Bill. Although we may put aside as incalculable the question of the quantity of litigation that will be submitted to such a court we cannot forget that if w'e could measure the quality of its work, its importance, and its future influence upon litigation in general, and possibly upon the Commonwealth itself, by its interpretation of the Constitution, we should find it to be of a very high character. It is likely to profoundly affect the development of the Constitution, and possibly the growth of this Parliament under that Constitution. We cannot ignore the fact that litigation challenging our Federal powers must come before the High Court, and that the interpretation placed upon the Constitution must be of the highest value and of the first importance. We cannot ignore the fact that even if there are few suits in which a State will appear against a State as plaintiff and defendant respectively, or in which the Commonwealth will be engaged in litigation with a State, such suits are provided for in this measure. Questions of magnitude - questions relating to the riparian rights of the States, to the revenue of the Commonwealth or to its powers - cannot safely be remitted to any Australian Court of less than five Justices. Independently of the quantity of litigation with which the court may have to deal, it is quite possible that during the first few years of its existence it may be confronted with actions of the character that I have suggested - actions, the importance of which abundantly justify its numerical strength as proposed under this measure,, even if it were required to perform no other work. Of course by reducing the amount of what might be termed "compulsory" litigation originally diverted into the court by this measure, and by striking out other provisions, it has been left more than ever to litigants to choose whether or not they will come before this court. Under the Bill as it was originally drafted much business had to come before the High Court. As it has been altered the litigant has been given the option of choosing whether or not this tribunal shall determine his suit. It is true that the largest court is not necessarily the court of most ability, but both the public and the profession are considerably impressed by the strength of any court. In the multitude of counsellors there is not always safety, but there are at least contributions of knowledge to the common stock. Putting aside the exceptional cases in which two or three particular Judges might be preferred to four or five named Judges, there is not one of us who would not rather have any momentous matter in which we were interested submitted to a Bench composed of five Judges than to one composed of only three Judges.


Mr Isaacs - The Supreme Court of Canada is only an Appellate Court, and it consists of six Judges.


Mr DEAKIN - Yes, that number is admitted to be absolutely necessary ! When a decision is to be challenged, litigants want the strongest Bench.







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